1

IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DR. RUSSELL KISER, D.D.S., M.S., : 

 : Case No. 2:12-CV-574 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

vs. : 

 : Magistrate Judge Elizabeth P. Deavers 

LILI REITZ, et al., : 

 : 

 Defendants. : 

OPINION & ORDER 

I. INTRODUCTION 

 This matter is before the Court on remand from the Sixth Circuit (Doc. 22) for 

consideration of all defendants’ (“Defendants”) Motion to Dismiss (Doc. 6). For the following 

reasons, Defendants’ motion to dismiss is GRANTED.

II. BACKGROUND 

 Plaintiff, Russell Kiser, D.D.S., M.S., (“Plaintiff”) is a licensed dentist practicing in the 

state of Ohio. He owns a dental practice at 1245 South Trimble Road, Mansfield, Ohio 44907. 

Defendants are fourteen members of the Ohio State Dental Board, sued in their official 

capacities: Lili Reitz, Marybeth D. Shaffer, Jacinto W. Beard, Mary Ellen Wynn, Douglas W. 

Wallace, Ketki B. Desai, James J. Lawrence, Constance F. Clark, Lawrence B. Kaye, W. Chris 

Hanners, Linda R. Staley, Clifford Jones, William G. Leffler, and Gregory A. McDonald 

(“Defendants”). The Dental Board (“Board”) is a state agency, established by Ohio Revised 

Code Chapter 4715.01, et seq., and the regulations in the Ohio Administrative Code Chapter 

4715, et. seq. Members of the Dental Board are empowered by statute to license and regulate 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 1 of 11 PAGEID #: <pageID>
2

dental professionals in the State of Ohio, as well as enforce the provisions of O.R.C. § 4715.01, 

et. seq., and O.A.C. § 4715, et. seq. 

Ohio Administrative Code § 4715-13-05 regulates the advertising of specialty dental 

services. The rule provides that a dentist may only advertise that she is a specialist if she meets 

the requirements of O.A.C. § 4715-5-04(B). The Code mandates that “the practice of the 

licensed dentist seeking specialty recognition must be limited exclusively to the indicated 

specialty area(s).” O.A.C. § 4715-5-04(B)(2). Section 4715-13 also governs public 

announcements, publicity, advertising, and solicitation of licensed dentists. 

Plaintiff is a specialist in the area of endodontics because he has completed an American 

Dental Association Commission on Dental Accreditation-accredited post-doctoral education 

program in endodontics and is a “Diplomate” of the American Board of Endodontics. On 

August 17, 2009, Plaintiff received a warning letter from the Dental Board for an alleged 

violation of O.A.C. § 4715-5-04(B)(2). The Board issued the warning for practicing “outside the 

scope” of his declared specialty— endodontics. Plaintiff alleges that the warning and threat of 

formal disciplinary action was intended to have a chilling effect on his commercial speech and 

induce him to forego lawful advertising. In May 2012, nearly three years after the Board issued 

the warning, Plaintiff requested that the Board review and approve proposed signage for his 

office that would include the terms “endodontist” and “general dentist” or “general dentistry.” 

The Board neither rejected nor approved the signage, but responded with a copy of the relevant 

regulations and a letter advising Plaintiff to consult with legal counsel. With its response, the 

Board also included a copy of the 2009 warning to Plaintiff. The Board did not, however, 

commence any formal proceedings or disciplinary action against Plaintiff, nor has the Board 

initiated any such discipline to date. 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 2 of 11 PAGEID #: <pageID>
3

Plaintiff brings multiple causes of action against the Defendants. Plaintiff seeks 

declaratory and injunctive relief related to the Ohio statutory scheme for the regulation of the 

practice of dentistry. See O.A.C. §§ 4715-5-04 and 4715-13-05. Plaintiff filed his Complaint in 

June 2012. In September 2012, Defendants filed this motion to dismiss for lack of subject matter 

jurisdiction and for failure to state a claim. This Court dismissed the case as unripe for 

adjudication in August 2013. (Doc. 17). The Plaintiff appealed, and the Sixth Circuit overturned 

that decision and remanded the case back to this Court for adjudication in August 2014. (Doc. 

22). The Court now considers the fully briefed motion. 

III. STANDARD OF REVIEW 

Federal Rule of Civil Procedure 12(b)(6) allows for a case to be dismissed for “failure to 

state a claim upon which relief can be granted.” Such a motion “is a test of the plaintiff's cause 

of action as stated in the complaint, not a challenge to the plaintiff's factual allegations.” Golden 

v. City of Columbus, 404 F.3d 950, 958–59 (6th Cir.2005). Thus, a court must construe the 

complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency, 

Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.2008). But a court is not 

required to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. 

Iqbal, 556 U.S. 662, 664 (2009). Although liberal, Rule 12(b)(6) requires more than bare 

assertions of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir.1993) (citation 

omitted). Generally, a complaint must contain a “short and plain statement of the claim showing 

that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must “give the 

defendant fair notice of what the claim is, and the grounds upon which it rests.” Nader v. 

Blackwell, 545 F.3d 459, 470 (6th Cir.2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 

(2007)). In short, a complaint's factual allegations “must be enough to raise a right to relief 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 3 of 11 PAGEID #: <pageID>
4

above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must 

contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 

A federal district court’s basis for subject matter jurisdiction over a dispute may be 

challenged by filing a motion under Federal Rules of Civil Procedure 12(b)(1). See Rogers v. 

Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). Subject matter jurisdiction may be 

challenged at any time by any party, and the court itself may dismiss a case where it decides that 

it lacks subject matter jurisdiction. Ogle v. Church of God, 153 F. App’x 371, 374 (6th Cir. 

2005) (“The existence of subject matter jurisdiction may be raised at any time, by any party, or 

even sua sponte by the court itself.”). The party invoking federal subject matter jurisdiction 

bears the burden of proving the existence of subject matter jurisdiction in the case. Id. at 375. 

IV. LAW AND ANALYSIS 

A. Abstention 

 Defendants argue that this Court should abstain from asserting jurisdiction because 

Ohio’s statutory scheme provides adequate judicial relief for agency decisions.1

 Plaintiff 

disagrees and argues that Ohio’s process is inadequate to address Plaintiff’s constitutional 

claims. The Court finds that abstention would be improper because Defendants have not made 

an adequate showing that adjudication would be disruptive to the administrative scheme. 

 “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” 

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 

1244, 47 L. Ed. 2d 483 (1976). A federal court must “abstain from jurisdiction where to assume 

jurisdiction would ‘be disruptive of state efforts to establish a coherent policy with respect to a 

                                                            

1

 Defendants also urge abstention under the Pullman doctrine, but that is inapplicable here because there is no 

pending state proceeding. R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 501, 61 S. Ct. 643, 646, 85 L. Ed. 

971 (1941) (where the Court abstained from hearing the case until the conclusion of state court proceedings because 

the controversy could be concluded in state court). 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 4 of 11 PAGEID #: <pageID>
5

matter of substantial public concern.’ ” AmSouth Bank v. Dale, 386 F.3d 763, 783 (6th Cir. 2004) 

(quoting Colo. River, 424 U.S. at 814). But it would be inappropriate for a federal court “to 

dismiss a suit merely because a State court could entertain it.” Colo. River, 424 U.S. at 814 

(quoting Alabama Pub. Serv. Comm'n. v. Southern R. Co., 341 U.S. 341, 361, 71 S.Ct. 762, 774, 

95 L.Ed. 1002, 1015 (1951) (Frankfurter, J., concurring in result)). 

 Here, Plaintiff challenges two independent sections of a statutory scheme. Defendants 

allege that if Plaintiff’s claims are successful, it will “disrupt the administrative scheme for the 

regulation of the practice of dentistry in Ohio.” (Doc. 6 at 19). But Defendants do not provide 

any detail about what would be disruptive to the administrative scheme. If this Court abstained 

from ruling on the constitutionality of state regulations because of abstention, Plaintiff would not 

have a practical alternative. Moreover, Plaintiff could be required to violate the regulations in 

order to challenge them under state law. The Court does not find Defendants’ argument 

persuasive, and declines to abstain from hearing the merits of Plaintiff’s claims. 

B. Subject Matter Jurisdiction 

Defendants argue that the Eleventh Amendment renders state agents immune from suit 

for monetary damages when sued in their official capacity. Plaintiff agrees and stipulates that he 

seeks no monetary relief. (Doc. 8 at 10-11). Although the Plaintiff initially requested “all 

attorneys’ fees and costs incurred in bringing this action” and “all other relief to which he may 

be entitled,” (Doc. 2 at 17) Plaintiff now agrees that he is not entitled to monetary relief against 

state agent Defendants. “[T]he federal court may award an injunction that governs the official’s 

future conduct[] but not one that awards retroactive monetary relief.” Pennhurst State Sch. & 

Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S. Ct. 900, 909, 79 L. Ed. 2d 67 (1984). On this 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 5 of 11 PAGEID #: <pageID>
6

point, the parties agree, and this Court GRANTS Defendants’ motion to dismiss any elements of 

Plaintiff’s prayer for relief that would provide for monetary relief. 

C. Substantive Due Process 

 Defendants argue that Plaintiff has not adequately pled a substantive due process 

violation because he did not allege that Defendants deprived him of any fundamental right. 

Plaintiff responds that the challenged statutes “constitute a taking of a constitutionally protected 

interest.” (Doc. 8 at 27). Plaintiff has not identified any fundamental right that has been 

affected, so his substantive due process claim fails. 

 Substantive due process is “[t]he doctrine that governmental deprivations of life, liberty 

or property are subject to limitations regardless of the adequacy of the procedures employed.” 

Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (quoting Bowers v. City of Flint, 325 F.3d 

758, 763 (6th Cir.2003)). Courts require a “ ‘careful description’ of the asserted fundamental 

liberty interest.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268, 138 L. 

Ed. 2d 772 (1997) (citing Reno v. Flores, 507 U.S. 292, 301, 113 S. Ct. 1439, 1447, 123 L. Ed. 

2d 1 (1993)). Here, Plaintiff has not identified any fundamental interest in his substantive due 

process claim. He states that enforcement of the regulations “constitute[s] a taking of a 

constitutionally protected interest” (Doc. 2 at ¶ 43) without identifying what that constitutionally 

protected interest is. Plaintiff has not pled a required element of claim for substantive due 

process with adequate specificity, so this claim is DISMISSED. 

D. Procedural Due Process 

In his complaint, Plaintiff complains that the challenged regulations violate procedural 

due process because the American Dental Association (“ADA”) determines “which areas of 

dentistry are ‘specialty areas.’ ” (Doc. 2 at ¶ 28). He argues that there is “no procedural 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 6 of 11 PAGEID #: <pageID>
7

protection from arbitrary or self-interested determinations by the ADA, which in turn are blindly 

adopted by the Defendant Board to determine what constitutes the lawful practice of dentistry 

and related advertising.” (Id. at ¶ 39). Defendants argue that there is no constitutional right to 

participate in the rulemaking process, but that Ohio provides such opportunity through a public 

hearing. (Doc. 6 at 23). Plaintiff argues that the constitutionally protected right is to licensure. 

(Doc. 2 at ¶ 40). Plaintiff further alleges that there is no legally protected right to notice or an 

opportunity to be heard when the ADA determines which areas of dental practice will be deemed 

specialties, and there is no right to appeal the ADA’s decisions to a neutral body. (Doc. 8 at 24-

25). 

“In procedural due process claims, the deprivation by state action of a constitutionally 

protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is 

unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. 

Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) (citing Parratt v. 

Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981)). “[P]rocedural due 

process generally requires notice and an opportunity to be heard.” Spinosi v. United States, No. 

2:11-CV-00961, 2011 WL 7144897, at *6 (S.D. Ohio Dec. 6, 2011) (citing Marderosian v. City 

of Beavercreek, 423 F. App'x 524, 527 (6th Cir.2011)). 

Here, the Plaintiff has pled that the Defendants have deprived him of a property interest 

in practicing in all the dental areas in which he is licensed. (Doc. 2 at ¶ 40). And the statute in 

question defers to the ADA in determining the areas of dentistry in which a candidate may 

become a specialist. O.A.C. § 4715-5-04(B)(1) (stating “[t]he indicated specialty(s) of dentistry 

must be those for which there are certifying boards recognized by the [ADA]”). But the ADA 

itself does not limit Plaintiff from practicing general dentistry. The ADA merely publishes a list 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 7 of 11 PAGEID #: <pageID>
8

of specialties, and individual states have the opportunity to use that list for lawmaking purposes. 

It is the Ohio law that limits Plaintiff from practicing general dentistry when he chooses to 

designate himself as a specialist in endodontics. Plaintiff argued that the ADA does not provide 

opportunity to participate in the rulemaking process, but the real inquiry is whether he has the 

right to participate in that rulemaking process or to petition the Board to amend its rules. And he 

pleads no facts to suggest that he cannot participate in that rulemaking process. In fact, 

Defendants state that “Ohio statutes provide for notice and opportunity for public comment in the 

rulemaking process.” (Doc. 10 at 17). Plaintiff does not plead that he has no opportunity to be 

heard in the rulemaking process by the Ohio Board, so his procedural due process claim fails. 

Defendant’s motion to dismiss this claim is GRANTED. 

E. Equal Protection 

 Defendants argue that the regulations have a reasonable relationship to the substantial 

government interest in enabling the public to distinguish between specialists and general dentists. 

Plaintiff argues that the regulations impinge on his fundamental right “to be rewarded for [his] 

industry” and they do not satisfy strict scrutiny or rational review. (Doc. 8 at 26). Plaintiff’s 

equal protection claim fails because the law does not burden a fundamental right, and it is 

rationally related to a legitimate government interest. 

 Under an equal protection analysis, “if a law neither burdens a fundamental right nor 

targets a suspect class, we will uphold the legislative classification so long as it bears a rational 

relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627, 

134 L. Ed. 2d 855 (1996) (citing Heller v. Doe, 509 U.S. 312, 319–320, 113 S.Ct. 2637, 2642, 

125 L.Ed.2d 257 (1993)). “[T]he right to work in a specific profession is not a fundamental 

right.” Helm v. Liem, 523 F. App'x 643, 645 (11th Cir.) cert. denied, 134 S. Ct. 830, 187 L. Ed. 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 8 of 11 PAGEID #: <pageID>
9

2d 691 (2013) (citing Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 

2566–67, 49 L.Ed.2d 520 (1976)) (stating that “a standard less than strict scrutiny has 

consistently been applied to state legislation restricting the availability of employment 

opportunities”). Plaintiff points to no case law that would suggest that a fundamental right exists 

to be “rewarded for [one’s] industry.” And the Supreme Court has held that the right to a certain 

type of employment is not a fundamental right. Furthermore, Plaintiff has not alleged that he 

belongs to a suspect class, so the proper analysis for this claim is rational basis review. 

 Rational basis review “employs a relatively relaxed standard reflecting the Court's 

awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an 

unavoidable one.” Murgia, 427 U.S. at 314. “On rational-basis review, a classification in a 

statute [] comes to us bearing a strong presumption of validity.” F.C.C. v. Beach Commc'ns, 

Inc., 508 U.S. 307, 314-15, 113 S. Ct. 2096, 2101-02, 124 L. Ed. 2d 211 (1993) (citing Lyng v. 

Automobile Workers, 485 U.S. 360, 370, 108 S.Ct. 1184, 1192, 99 L.Ed.2d 380 (1988)). A law 

will survive rational basis review “if there is a rational relationship between the disparity of 

treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320, 

113 S. Ct. 2637, 2642, 125 L. Ed. 2d 257 (1993). The state has a legitimate purpose in enabling 

the public to distinguish between general and specialist dentists, and the Sixth Circuit even 

suggests that the interest might be “substantial.” Parker v. Com. of Ky., Bd. of Dentistry, 818 

F.2d 504, 510 (6th Cir. 1987). 

 Here, the government has at least a legitimate purpose, if not a substantial interest, in 

enabling the public to distinguish between general and specialist dentists. And it is rational to 

further that interest by requiring dentists to categorize themselves as either a generalist or 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 9 of 11 PAGEID #: <pageID>
10

specialist, and limit advertising accordingly. The challenged laws survive a rational basis 

analysis, so Plaintiff’s equal protection claim is DISMISSED. 

F. First Amendment 

 Plaintiff brings a claim that the challenged regulations violate the First Amendment 

because they do not allow him to advertise for all dental services he is licensed to perform. 

Defendants argue that because Ohio law prevents Plaintiff from providing services as a specialist 

and a general dentist, advertising both services would be advertising an illegal activity, which is 

not granted First Amendment protections. The Court finds no First Amendment violation here 

because advertisement for both specialist and general dentistry services violate Ohio laws, which 

would constitute advertisement for illegal activity. 

 “The First Amendment, as applied to the States through the Fourteenth Amendment, 

protects commercial speech from unwarranted governmental regulation.” Cent. Hudson Gas & 

Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 561, 100 S. Ct. 2343, 2349, 65 L. 

Ed. 2d 341 (1980). But “false, deceptive, or misleading commercial speech may be banned.” 

Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, Bd. of Accountancy, 512 U.S. 136, 142, 114 

S. Ct. 2084, 2088, 129 L. Ed. 2d 118 (1994) (citing Zauderer v. Office of Disciplinary Counsel of 

Supreme Court of Ohio, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985)). And 

advertising that “proposes an illegal transaction is not protected by the First Amendment from 

state regulation.” Parker v. Com. of Ky., Bd. of Dentistry, 818 F.2d 504, 509 (6th Cir. 1987). 

 Here, the Board issued a warning to Plaintiff when he advertised services outside of his 

specialization of endodontics. (Doc. 2 at ¶ 22). But Plaintiff has not succeeded on any other 

grounds to challenge the regulation that limits his practice to endodontics. The Ohio regulation 

banning a specialist from performing general dentistry remains in full effect. So any 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 10 of 11 PAGEID #: <pageID>
11

advertisement for services outside endodontics would constitute deceptive advertising, if 

Plaintiff did not anticipate performing the additional services, or would be for an illegal activity 

if Plaintiff planned to perform the services. For these reasons, Plaintiff’s First Amendment claim 

is DISMISSED. 

V. CONCLUSION 

 For the foregoing reasons, this Court GRANTS Defendants’ motion to dismiss, and the 

case is DISMISSED in its entirety. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

DATED: March 20, 2015 

Case: 2:12-cv-00574-ALM-EPD Doc #: 27 Filed: 03/20/15 Page: 11 of 11 PAGEID #: <pageID>